The Legal Challenge

NATO intervention in Kosovo was meant to bring peace to Kosovo, democracy to Serbia and stability to the region. None of these things has happened.

Is lawlessness now to be added to 'ancient hatred' as another reason for the outside world to abandon south-eastern Europe to its unchangeable, chaotic fate?

On the contrary: law is a powerfully flexible system of interpreting the politics which divide people. Making law in and about Kosovo is the only long-term solution to the region's problems.

I am not going to spend time on the debate about the legality of the original action, except to say that the Security Council had already found in 1998 that the situation in Kosovo was 'a threat to the peace, breach of the peace or act of aggression of an international character', invoking Chapter VII of the UN Charter.

The UN's subsequent failure to authorise the use of force created a dangerous vacuum. Resolution 1199 pointed the finger at Yugoslav forces and their role in creating the humanitarian crisis, but did nothing to halt attacks on the population because Russia and China threatened to use their vetoes - apparently more to do with Chechnya and Tibet than Kosovo, revealing neither country to be passionate defenders of international justice.

However, a regional defence organisation like NATO short circuiting the customary and convention-based legal framework of the UN is a dangerous precedent. This puts heavy emphasis on the need for rapid introduction under UN auspices of the rule of law in Kosovo and early agreement on how the province's future status is to be resolved.

When KFOR soldiers moved into Kosovo at the end of June 1999 they began to establish some form of civil order, but the few NATO troops available meant only central urban areas could be controlled. Civil administration under UNMIK has done little to improve the situation. Western countries have contributed police and trainers, but their difficulty has been finding laws to enforce.

When UNMIK took over, it announced that existing Yugoslav law would continue to be applied, but that was quickly shown to be unacceptable to the returning Albanians, since many aspects of that law were discriminatory. The decision was then taken to apply a combination of legal systems: pre-1989 Yugoslav law, unless, in the opinion of the Head of UNMIK and Special Representative to the Secretary General, Bernard Kouchner, it was unjust, in which case French or English law would be applied.

But worse than this confusion has been the difficulty finding local police officers and judges willing to enforce any law. After the Serb pullout, local power fell to those with guns and the black market operators who hire them. The foreign UNMIK police have found themselves unable to identify the perpetrators of crime. Worse, even if evidence can be found, there are few judges with the courage to hear cases. The number of international police is around a third of the 6,000 Kouchner has said is the minimum needed to bring order.

A locally recruited police force has begun to be formed, so far a few hundred out of 3,500 planned officers have been trained, but UNMIK's ambition to include Serbs in the force has been frustrated. In areas where Serbs are in sufficient numbers, for example in Mitrovica, they are taking charge of their own security with unofficial militias.

In Albanian areas, the Humanitarian Law Centre in Pristina reports former Kosovo Liberation Army, UCK, fighters, with few means of getting money, continue to run protection rackets

The reluctance of donor states to send more international police officers must reflect their doubts about whose law they are enforcing and how the political status of the Albanians is to be settled. Until the future of the province is clear, trying to establish municipal legal rules is rather like wallpapering a collapsing building.

Because the Albanians in Kosovo were treated brutally and illegally by the Serbian authorities, it is not hard to see why they hope that the outcome of their long suffering will be to escape Serb politics forever, by gaining their own independence. Unfortunately, in international law, things are not so simple.

Those who believe Kosovo should be independent rely on the principle of 'self-determination', introduced in the Fourteen Points of US President Woodrow Wilson during the First World War. What self-determination actually means has been evolving since then, and Kosovo lies at the limits of that evolution.

International law, as interpreted by judges at the International Court of Justice in the Hague, takes account of what is called 'state practice... on the importance of territorial integrity'. In other words, keeping countries united within their borders is considered to be an important way of avoiding chaos. Self-determination remains a right of colonised 'peoples'.

The UN resolutions and declarations which still provide the legal definition of a 'people' say they must be all the people of a given territory, denied political rights by a colonising power. Comfortably or not, Kosovar Albanians have shared political rights with the other citizens of Serbia for more than a century, sometimes even on equal terms.

They might justifiably argue that Slobodan Milosevic treated them like 'natives in a colony', denying them votes, schools, hospitals, freedom of movement, and finally their homes and lives; that proves that they were badly governed, not that they were colonised in the legal sense.

In other words, self-determination is not the same as secession, but means the right to take part in the choice of style and composition of government, free of discrimination, in the spirit of the UN's 1970 Friendly Relations Declaration.

Among the dangers of taking the opposite view would be: removing pressure on undemocratic governments to reform; their endless violent fragmentation; and the redrawing of borders with reference to minority claims which cannot in fact be settled by the drawing of lines, so intermixed are the populations.

In the Kosovo case, in common with most of Central and Eastern Europe, the historic and religious importance of the territory to different groups means that partition and/or secession are extremely problematic. Whichever version of Balkan history you use, this is not a competition between invaders and indigenous groups of the Tibetan or East Timorese type. The search should be for regional political arrangements that provide 'democratic space', not lebensraum.

Regional considerations underline the need for care. Neighbouring Macedonia, a state only eight years old, has a large Albanian minority whose reaction to independence for Kosovo would most likely be to demand the right to draw their own line, while Bosnian Serbs could make a similar case, destroying the Dayton Accords.

In any conflict resolution effort, the most important element is 'process'. Hesitancy and inaction play into the hands of extremists. What is needed for Kosovo is a dynamic, virtuous circle of internal civil and criminal law and properly recognised international legal status. This would create both action and space for regional negotiation.

This could be achieved in the following way.

Kosovo's interim status should be formalised, becoming officially a UN administered territory with a fixed term review every four years in anticipation of a wider regional settlement based on future EU association agreements. The link with Serbia would not be broken, but regionalised. This could be achieved by UN General Assembly vote, avoiding Security Council vetoes.

The interim political system within Kosovo should be based on elections using Alternative Vote proportional representation to ensure candidates for office must win cross-community support. Some administrative and cabinet positions should be reserved to minorities -- Roma and Turkish, as well as Serb.

The rule of law and the independence of the judiciary will not grow naturally out of such a situation, but would thrive once the status of the province was clearer. The enforcement of proper policing and criminal justice is not a task which can wait for long. EU countries must live up to their promises.

Serbs will maintain access to their historic and religious sites. Albanian political leaders would be engaged in a process which would give them effective local power and the chance to build civil society.

The alternative is to hand the province over to the Albanians without civil society being established, providing powerful ammunition to rabble-rousing nationalists in Serbia, Albania, Macedonia and Bosnia, as well as Kosovo itself.

The failure of the UN to act in Kosovo was damaging enough to the principle of collective security. A failure to create a legal process dealing with the external and internal consequences of the crisis will further damage international efforts to embed human rights and socialise the use of force.

Dan Damon reported on the Yugoslav conflict for Sky News